Toronto International Celebration Church (1424924 Ontario Inc.) v. Her Majesty the Queen as Represented by the Attorney General of Ontario et al.

[Indexed as: Toronto International Celebration Church v. Ontario (Attorney General)]

Ontario Reports

Ontario Superior Court of Justice

Davies J.

December 21, 2020

154 O.R. (3d) 122 | 2020 ONSC 8027

Case Summary

Injunctions — Interlocutory injunction — Balance of convenience — Irreparable harm — Toronto Church having to restrict numbers of attendees of religious services pursuant to regulation to address COVID-19 pandemic — Church applying to strike down regulation as infringing religious freedom — Pending hearing of constitutional challenge, Church applying for interim injunction exempting it from enforcement of regulation — Application dismissed — Church established serious question to be determined and irreparable harm — Harm caused by granting injunction outweighed harm to Church's freedom of religion — Regulation was duly enacted to protect public from real and ongoing threat of COVID-19.

An evangelical Christian church in Toronto with over 1,500 members owned a large facility capable of holding 1,000 people. In March 2020, the provincial government declared a state of emergency as a result of the outbreak of the COVID-19 pandemic, resulting in various restrictions being imposed on businesses and activities. The government subsequently set out a regulatory framework to determine staged control measures to allow for the reopening of businesses and services in the province. Under Regulation 82/20, for regions in Stage 1 of the framework, nobody was allowed to attend a religious service with more than ten people in attendance. For regions in Stage 2, religious services could be held as long as the number of people in attendance did not exceed 30 per cent of the capacity of the room. In November 2020, the City of Toronto was placed into Stage 1. The result was that the Church was not able to operate as usual. The Church sought to strike down Regulation 82/20 on the ground that it was an infringement of freedom of religion under the Canadian Charter of Rights and Freedoms. Pending the hearing of the constitutional challenge, the Church sought to be allowed to hold in-person religious services subject to the 30 per cent capacity restriction, and as such applied for an interim injunction exempting it from the enforcement of Regulation 82/20.

Held, the application should be dismissed.

There was a serious issue to be decided. The Church did not have to meet the higher test of demonstrating a strong prima facie case because granting an injunction would not finally determine the rights of the parties. Ontario had made policy choices about which activities were permitted and which were restricted. The evidence presented on the injunction application was not conclusive that limiting religious services to ten people was the least restrictive way to achieve the objective of reducing the spread of COVID-19 in high-risk regions of the province. As such, there was a serious issue to be determined, particularly in relation to the minimal impairment requirement under the Charter s. 1 analysis.

The Church and its members would suffer irreparable harm if required to comply with the regulation until the Charter application was heard on its merits. In an affidavit, the Church's founding pastor stated than in-person worship was an important part of the religious practices of the Church and that fellowship ranked in importance with prayer, scriptural teaching and Holy Communion. The Church also tendered evidence from three of its members regarding the importance of in-person congregational services. The ten-person limit meant that the vast majority of the membership could not participate in congregational prayer and fellowship. There was no way to quantify or compensate the Church and its members for the lost opportunity to worship together.

The harm that would be caused by granting an injunction outweighed the harm to the Church's freedom of religion. The application was treated as a request for an exemption, but it ignored reality to treat the case as affecting only the rights of the Church and its members. An exemption granted to the Church would likely result in other religious institutions seeking similar exemptions, so the case was tantamount to a request for the suspension of the regulation. Regulation 82/20 was enacted through the democratic process to protect the public from the very real and ongoing threat of COVID-19. It had been tailored in several ways to limit its application and impact. It only restricted the size of religious gatherings in regions experiencing high rates of community transmission, increased numbers of outbreaks among vulnerable populations and increased demands on the health system. Courts should not lightly interfere with the government's ability to enforce laws duly enacted for the public good before a full hearing on the constitutionality of the provisions.

RJR-MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311, [1994] S.C.J. No. 17, 111 D.L.R. (4th) 385, 164 N.R. 1, J.E. 94-423, 60 Q.A.C. 241, 54 C.P.R. (3d) 114, 46 A.C.W.S. (3d) 40, REJB 1994-28671, apld

Gould v. Canada (Attorney General), 1984 CanLII 142 (SCC), [1984] 2 S.C.R. 124, [1984] S.C.J. No. 33, 13 D.L.R. (4th) 485 at 491, 53 N.R. 394, 27 A.C.W.S. (2d) 407, affg 1984 CanLII 5301 (FCA), [1984] F.C.J. No. 82, [1984] 1 F.C. 1133, 13 D.L.R. (4th) 485 at 487, 54 N.R. 232, 42 C.R. (3d) 88, 27 A.C.W.S. (2d) 407 (C.A.); Toronto (City) v. Ontario (Attorney General) (2018), 142 O.R. (3d) 481, [2018] O.J. No. 4742, 2018 ONCA 761, 296 A.C.W.S. (3d) 300, 426 D.L.R. (4th) 374, 80 M.P.L.R. (5th) 26, 416 C.R.R. (2d) 132, distd

Other cases referred to

Frank v. Canada (Attorney General), [2019] 1 S.C.R. 3, [2019] S.C.J. No. 1, 2019 SCC 1, 428 D.L.R. (4th) 451, 426 C.R.R. (2d) 209, 2019EXP-87; Harper v. Canada (Attorney General), [2000] 2 S.C.R. 764, [2000] S.C.J. No. 58, 2000 SCC 57, 193 D.L.R. (4th) 38, 262 N.R. 201, [2001] 9 W.W.R. 201, J.E. 2000-2262, 92 Alta. L.R. (3d) 1, 271 A.R. 201, 100 A.C.W.S. (3d) 878, REJB 2000-20913; Manitoba (Attorney General) v. Metropolitan Stores (MTS) Ltd., 1987 CanLII 79 (SCC), [1987] 1 S.C.R. 110, [1987] S.C.J. No. 6, 38 D.L.R. (4th) 321, 73 N.R. 341, [1987] 3 W.W.R. 1, J.E. 87-396, 46 Man. R. (2d) 241, 25 Admin. L.R. 20, 87 CLLC para. 14,015, 18 C.P.C. (2d) 273, 3 A.C.W.S. (3d) 390, EYB 1987-67148

Statutes referred to

Canada Elections Act, R.S.C. 1970, c. 14 (1st Supp.) [rep.]

Canadian Charter of Rights and Freedoms, ss. 1, 2(a)

Rules and regulations referred to

Order Under Subsection 7.0.2 (4) Of The Act — Organized Public Events, Certain Gatherings, O. Reg. 276/20, s. 6(2)

Rules for Areas in Stage 1, O. Reg. 82/20 [as am.], Sch. 4 [as am.]

APPLICATION for an interim injunction for an exemption from enforcement of a regulation.

Michael Lacy, Lawrence Gridin and Alex Alton, for applicant.

Josh Hunter, Daniel Guttman, Ravi Amarnath and Savitri Gordian, for respondent.

Ryan O'Connor, for Intervenor.

DAVIES J.: —

A. Overview

[1] The Toronto International Celebration Church is an evangelical Christian church in Toronto with more than 1,500 members. The Church has a large facility that can hold 1,000 people. Before March 2020, the Church would hold two services every Sunday with 600 people or more in attendance. On special occasions, like Christmas and Easter, the Church might have 3,000 to 4,000 people attend its services over several days. The Church also held smaller services and meetings throughout the week.

[2] However, the Church has not been able to operate as usual since the Premier of Ontario declared an emergency on March 17, 2020 in response to the COVID-19 pandemic. Since that time, the Church, like many businesses and activities in Ontario, has been subject to various restrictions.

[3] Under Sch. 4 of Rules for Areas in Stage 1, O. Reg. 82/20, nobody is allowed to attend a religious service with more than ten people in attendance. This regulation applies to regions of the province that have been designated as being in Stage 1 of Ontario's reopening framework, which is the most restrictive stage. For regions in Stage 2 of the framework, religious services can be held so long as the number of people in attendance does not exceed 30 per cent of the capacity of the room in which the service is being held: Order Under Subsection 7.0.2 (4) Of The Act -- Organized Public Events, Certain Gatherings, O. Reg. 276/20, s. 6(2).

[4] The City of Toronto was designated as being in Stage 1 as of November 23, 2020 and has remained in Stage 1 since then. As a result, the Church is precluded from holding services with more than ten people in attendance.

[5] The Church has brought an application to strike down O. Reg. 82/20 to the extent it prohibits more than ten people from attending a religious service in person. The Church argues that the regulation is an unjustified infringement of s. 2(a) of the Canadian Charter of Rights and Freedoms, which guarantees everyone freedom of conscience and religion.

[6] The Church also seeks an interim injunction pending the hearing of its constitutional challenge to allow the Church to hold in-person religious services subject only to the 30 per cent capacity restriction that applies to religious services held in regions in Stage 2. This would allow the Church to hold services with approximately 300 people, which it can do while maintaining the required social distance between congregants. In effect, the Church asking to be exempt from the enforcement of O. Reg. 82/20 until the constitutionality of the regulation is decided.

[7] On December 18, 2020, I heard and dismissed the interim injunction application. I gave brief oral reasons with written reasons to follow. These are those reasons.

B. Legal Framework for Granting an Interim Injunction

[8] The burden is on the Church to establish that granting an injunction is in the interests of justice, which requires a careful balancing of the interests at stake, particularly in light of the alleged infringement of a Charter-protected right. When considering whether to grant an interim injunction, the court will consider three questions: see RJR-MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311, [1994] S.C.J. No. 17, at pp. 334-35 S.C.R. First, does the Church's Charter application have merit? Second, will the Church and its members suffer irreparable harm if the injunction is refused? And third, which party will suffer the greater harm from the granting or refusal of the injunction pending a decision on the merits; in other words, does the balance of convenience favour granting the injunction?

i. Does the Church's Charter application have merit?

[9] The parties do not agree on the precise test to be applied at the first stage of the analysis. The Church argues that it only has to establish that there is a serious issue to be tried, meaning that their application is not frivolous or vexatious. On the other hand, Ontario argues that a more stringent test should apply and the Church must demonstrate that it has a "strong prima facie case". In other words, Ontario argues that the Church has to show it is likely to win the Charter application before an interim injunction is granted.

[10] Ordinarily, an applicant only has to establish that there is a "serious issues to be tried" in that its claim is not frivolous or vexatious to satisfy the first stage of the test for an interim injunction: see RJR-MacDonald Inc., at pp. 334-35 S.C.R. This is a low threshold and does not involve a detailed assessment of the merits of the underlying claim: see RJR-MacDonald, at pp. 337-38 S.C.R.

[11] However, in cases where the decision to grant or deny an injunction will also amount to a final determination of the merits of the case, the court will give more weight to the merits of the underlying application and will consider whether there is a strong prima facie case or a strong likelihood that the applicant will ultimately succeed: see Toronto (City) v. Ontario (Attorney General) (2018), 142 O.R. (3d) 481, [2018] O.J. No. 4742, 2018 ONCA 761, at para. 10. As the Supreme Court of Canada explained in RJR-MacDonald, at p. 338 S.C.R., "this will be the case either when the right which the applicant seeks to protect can only be exercised immediately or not at all, or when the result of the application will impose such hardship on one party as to remove any potential benefit from proceeding to trial".

[12] In my view, the proper test at the first stage in this case is whether there is a serious issue to be decided. The Church does not need to meet the higher test because granting an injunction will not finally determine the rights of the parties. Two examples should suffice to explain this conclusion.

[13] In Toronto (City) v. Ontario (Attorney General), the City challenged the constitutionality of provincial legislation enacted after campaigning for the 2018 municipal election, which was scheduled for October 22, 2018, had already started. The legislation would reduce the number of wards in Toronto from 47 to 25. On September 10, 2018, a judge of this court ruled that the amendments were unconstitutional and of no force and effect, thereby ordering that the election proceed with the original 47 wards. The Attorney General appealed that decision to the Court of Appeal and sought an interim stay of the lower court's decision. The Court of Appeal heard argument on the interim stay application on September 18, 2020, just over a month before the election. In those circumstances, the court applied the higher standard at the first stage of the test and considered whether there was a strong likelihood that the Attorney General's appeal would succeed and the legislation would be found to be constitutional. At para. 10, the court held:

An immediate decision is required to permit the Toronto municipal election to proceed on October 22. That decision must be rendered now and, subject to further legislative intervention, our decision will decide whether the election proceeds on the basis of 25 or 47 wards. In these circumstances, greater attention must be paid to the merits of the constitutional claim and, as contemplated by RJR-MacDonald, we must ask whether there is a strong likelihood that the appeal will succeed.

Given the timing of the interim stay application before the Court of Appeal, it would finally determine whether 47 or 25 city councillors would be elected: if the stay was granted, the election would proceed on the basis of the new 25-ward regime; if the stay was not granted, the amendments would be of no force and effect and the election would proceed under the old 47-ward regime. Once the election was held, the constitutional challenge would effectively be moot.

[14] In Gould v. Canada (Attorney General), 1984 CanLII 5301 (FCA), [1984] F.C.J. No. 82, [1984] 1 F.C. 1133 (C.A.), affd 1984 CanLII 142 (SCC), [1984] 2 S.C.R. 124, [1984] S.C.J. No. 33, Mr. Gould challenged the constitutionality of the provision of the Canada Elections Act, R.S.C. 1970, c. 14 (1st Supp.) that disqualified him from voting because he was serving a sentence in a penal institution. Mr. Gould sought an interim injunction so he could vote in the federal election, which was just weeks away. A judge of the Federal Court Trial Division granted Mr. Gould an interim injunction and ordered the returning officer to issue him a proxy certificate to allow someone to vote on his behalf. The trial court judge applied the strong prima facie case standard at the first stage of the test because the injunction application would finally determine Mr. Gould's rights. The election was on a fixed date: if the injunction were not granted, Mr. Gould would not be able to vote. By the time of the next federal election, Mr. Gould would have completed his sentence and would once again be eligible to vote. As a result, his constitutional challenge would become largely academic once the election occurred. The Federal Court of Appeal ultimate[ly] overturned the injunction on other grounds, ruling that the hearing judge failed to adequately account for the public interest at the third stage of the test. Nevertheless, this is a clear example where the granting or denial of injunctive relief finally determines the rights of the parties such that the higher test at the first stage of the RJR-MacDonald test should apply.

[15] Here, the Church is seeking to exercise an ongoing right to freedom of religion. That is not a right that the Church or its members must exercise "immediately or not at all". While the upcoming holidays are very significant to the Church and its members, this case is not just about religious services over the Christmas season. This case is about the right of the Church and its members to practice their faith on an ongoing basis through in-person congregational worship and fellowship. Because the injunction application will not finally determine the rights of the parties, the Church only needs to establish that there is a serious issue to be determined on its application for an interim injunction.

[16] Ontario concedes that O. Reg. 82/20 restricts the religious freedom of the Church and its members. The application will, therefore, turn on whether the government will be able to justify the restriction under s. 1 of the Charter. The burden will be on Ontario to establish that the restriction on the number of people who can attend a religious service in person are in response to a pressing and substantial objective, that the restriction is rationally connected to its intended purpose, that the restriction impairs the right as little as possible and that the benefits of the restriction outweigh the impact of the infringement of the Church's freedom of religion.

[17] The parties filed evidence on the merits of the Charter claim. They also each made extensive argument on whether the regulation is likely to be found to be a reasonable limit on the Church's right to freedom of religion. It is not for me to weigh that evidence or decide whether the government has established that the regulation is a reasonable limit on freedom of religion at this point in the proceedings. Those issues are for the judge hearing the Charter application to decide once all the evidence is filed: see Manitoba (Attorney General) v. Metropolitan Stores (MTS) Ltd., 1987 CanLII 79 (SCC), [1987] 1 S.C.R. 110, [1987] S.C.J. No. 6, at para. 46.

[18] Nonetheless, based on the evidentiary record before me, I am satisfied that there is a serious issue to be determined, particularly in relation to the minimal impairment requirement under the s. 1 analysis. Ontario has made policy choices about which activities are permitted and which activities are restricted in regions that are in Stage 1. Some businesses and services are permitted to stay open with a 50 per cent capacity limit during Stage 1. Some businesses and services are even permitted to operate without enforcing the indoor mask requirement during Stage 1. The evidence presented on the injunction motion is not conclusive that restricting religious services to ten people is the least restrictive way to achieve the government's objective of reducing the spread of COVID-19 in high-risk regions of the province.

[19] On the one hand, the public health and medical experts have identified several risk factors for the spread of COVID-19, including close and prolonged contact of people from different households in indoor spaces. Coughing, sneezing, singing, shouting or talking also increase the risk of COVID-19 transmission. Many of these risk factors are associated with in-person, congregational religious services. In addition, Dr. Hodge, a Public Health and Emergency Medicine physician, testified that there is an 80.5 per cent probability that at least one person in a group of 300 -- which would be the maximum number of people the Church could have at a service if permitted to operate at 30 per cent capacity -- will be infectious with COVID-19. There is also evidence of a small number of cases (134 of the 144,000 cases) of COVID-19 transmission directly linked to religious services in Toronto and other regions of Ontario. This data likely under-represents the full extent of COVID-19 transmission related to religious services because it only includes people who have been identified as contracting COVID-19 at religious service; it does not include people who were infected through secondary contact with someone who contracted COVID-19 during a religious service.

[20] On the other hand, there is no information about whether the religious gatherings that resulted in the identified "outbreaks" occurred after the government mandated social distancing and indoor mask wearing, or whether there have been any reported "outbreaks" associated with larger religious services since those protective measures were put in place. There is also no research on the relative risks of religious services when compared to the businesses and services that the government has permitted to operate with fewer restrictions.

[21] Again, it is not for me to resolve the conflicts in the evidence. Nor am I ruling on whether Ontario can establish that O. Reg. 82/20 is a reasonable limit on freedom of religion. I reference the evidence only to demonstrate that, at a minimum, there is a serious issue to be decided in terms of whether the government has carefully tailored the restriction to ensure it impairs freedom of religion no more than is reasonably necessary, and whether the means chosen by the government to minimize the spread of COVID-19 fall within a range of reasonable alternatives: see Frank v. Canada (Attorney General), [2019] 1 S.C.R. 3, [2019] S.C.J. No. 1, 2019 SCC 1, at para. 66.

ii. Will the Church and its members suffer irreparable harm if an interim injunction is not granted?

[22] Irreparable harm is a harm that cannot be quantified in monetary terms or that cannot be cured. The focus is on the harm the Church and its members will suffer if they continue to be prohibited from having religious services with more than ten people physically present. Any harm the public would suffer if an injunction were granted is not considered at this stage of the analysis: see RJR-MacDonald, at p. 341 S.C.R.

[23] I am satisfied that the Church and its members will suffer irreparable harm if an injunction is not granted and the restriction on in-person religious services continues. The Church tendered an affidavit from its founding Pastor, Peter Youngren. Pastor Youngren states that in-person worship is an important part of the religious practices of the Church. He says that several passages in the Bible mandate members of the Church congregation to regularly meet in person. Pastor Youngren says that fellowship between believers is also mandated in the Bible. He says that fellowship ranks in importance with prayer, scriptural teaching and Holy Communion. Pastor Youngren says that the Bible emphasizes congregational prayer where the whole church comes together in prayer. The Church also tendered evidence from three of its members, each of whom speaks about the importance of in-person, congregational services to their religious practice. I accept the evidence put forward by the Church on the importance of congregational prayer and in-person fellowship to its religious practice and the religious practice of its members.

[24] Schedule 4 of O. Reg. 82/20 does not prohibit all in-person religious gatherings. The Church is permitted to hold in-person services with up to ten people present. However, the Church has 1,500 members and regularly holds services for 600 people or more. The current restriction means that the vast majority of the members of the Church are unable to participate in congregational prayer and fellowship, which is central to their religious beliefs.

[25] The restrictions on the religious practices of the Church and its members are particularly profound at this time of year. As Pastor Youngren said in his affidavit, for the members of the Church, Christmas is the second most important time of the year, after Easter. There simply is no way to quantify or compensate the Church and its members for the lost opportunity to worship and celebrate this most holy time together. I am, therefore, satisfied that the Church and its members will suffer irreparable harm if required to comply with the regulation until the application is heard on its merits.

iii. Which party will suffer the greater harm from the granting or refusal of the injunction pending a decision on the merits?

[26] In a constitutional case, the public interest must be factored into the decision about which party will suffer the greater harm if an injunction is granted or refused. While the protection of Charter rights is paramount, the question is whether it is equitable to deprive the public from the protection and advantages of O. Reg. 82/20 before the validity of that regulation has been determined.

[27] The Church argues that the harm that will be caused by granting an injunction is minimal because they are seeking an individual exemption from the regulation; they are not seeking an interim suspension of the regulation. They argue that the question is whether allowing one church in Toronto to hold services for up to 300 people in accordance with social distancing and indoor masking requirements will cause significant harm to public health. The Church argues that because there is no epidemiological evidence of any significant outbreak related to religious services where social distancing and masking were practiced, there is no basis to conclude that allowing services with more than ten people present will pose a risk to the public health. According to the Church, the balance, therefore, favours protecting its religious freedoms.

[28] On the other hand, Ontario argues that O. Reg. 82/20 was enacted to protect public health by slowing the spread of COVID-19. Ontario argues that the ten-person limit for religious services is temporary and only applies to areas designated to be in Stage 1, where the risks are highest. Ontario argues that the public interest in preserving the restriction in light of the clear health risks outweighs the temporary restriction on the Church's freedom of religion.

[29] It is difficult to determine where the balance of convenience lies in this case because there is a strong public interest in both protecting health of Ontarians during this pandemic and protecting freedom of religion. In Harper v. Canada (Attorney General), [2000] 2 S.C.R. 764, [2000] S.C.J. No. 58, 2000 SCC 57, at para. 5, the Supreme Court of Canada recognized that it is often difficult to balance the competing and conflicting interests at play in constitutional cases:

Applications for interlocutory injunctions against enforcement of still-valid legislation under constitutional attack raise special considerations when it comes to determining the balance of convenience. On the one hand stands the benefit flowing from the law. On the other stand the rights that the law is alleged to infringe. An interlocutory injunction may have the effect of depriving the public of the benefit of a statute which has been duly enacted and which may in the end be held valid, and of granting effective victory to the applicant before the case has been judicially decided. Conversely, denying or staying the injunction may deprive plaintiffs of constitutional rights simply because the courts cannot move quickly enough.

[Citation omitted]

Nonetheless, I am satisfied that the harm that would be caused by granting an injunction in light of the risks posed by COVID-19 in areas designated as Stage 1 outweighs the harm to the Church's freedom of religion.

[30] While this application is framed as a request for an exemption, to treat this case as affecting the rights of the Church and its members only ignores reality. The precedential and exemplary effect of granting an exemption to the Church is also relevant to my assessment of the public interest. As the Supreme Court of Canada held in Manitoba (Attorney General) v. Metropolitan Stores Ltd., supra, at para. 80:

Depending on the nature of the cases, to grant an exemption in the form of a stay to one litigant is often to make it difficult to refuse the same remedy to other litigants who find themselves in essentially the same situation, and to risk provoking a cascade of stays and exemptions, the sum of which make them tantamount to a suspension case.

If I grant an exemption to the Church, other religious institutions would likely seek a similar exemption to allow for larger in-person services and the court may be hard pressed to find a principled basis to deny an exemption to others. As a result, this case is tantamount to a request for a suspension of the regulation pending the resolution of the case on its merits even though it is framed as a request for a narrow exemption.

[31] O. Reg. 82/20 was enacted through the democratic process to protect the public from the very real and ongoing threat of COVID-19. The research and knowledge about the spread of COVID-19 is evolving. The current understanding is that settings most associated with COVID-19 transmission involve close proximity of people from different households for a prolonged period of time. Public health officials have recommended even greater restrictions on businesses and activities to prevent the spread of COVID-19 than are contained in O. Reg. 82/20. On issues as complicated as managing a pandemic, the government is entitled to consider interests beyond public health. Although O. Reg. 82/20 does not align precisely with the public health advice, it is responsive to the identified risks factors for the spread of COVID-19.

[32] The regulation has also been tailored in several ways to limit its application and impact. It will be for the judge hearing the merits of the Charter application to decide whether the regulation is sufficiently tailored to be minimally impairing. Nonetheless, it is relevant to my assessment of the relative harm that will be caused by granting or denying an exemption that the regulation is temporally and geographically limited. It only restricts the size of religious gatherings in those regions experiencing high rates of community transmission, increased numbers of outbreaks among vulnerable populations and increased demands on the health system. And it only applies for as long as a region remains in the highest risk zone.

[33] Courts should not lightly interfere with the government's ability to enforce laws duly enacted for the public good before a full hearing on the constitutionality of the provisions: see Harper, at para. 9. I find that, in the short term at least, if an injunction were granted, the harm that would be caused to public health in Toronto and in other regions designated as Stage 1 outweighs the harm being suffered by the Church and its members. Notwithstanding the significant impact of the ten-person limit on in-person religious services on the religious freedom of the Church and its members, I find that the balance of convenience favours requiring compliance with O. Reg. 82/20 until the application can be heard on its merits. The injunction application is, therefore, denied.

[34] Ontario is not seeking costs of this application. If the Church wants to seek costs associated with this injunction motion based on the public interest involved, it may make that request of the judge hearing the merits of the Charter application.

Application dismissed.

End of Document